Two Recent EEOC Lawsuits Remind Employers About Law of Pre-Offer Medical Inquiries

As has been the case for many years, the Equal Employment Opportunity Commission (EEOC) closed out its 2017 fiscal year (which ended on September 30) by filing a flurry of lawsuits. Looking at the subject matter of such lawsuits sheds light on the EEOC’s priorities, which can be helpful information for employers trying to comply with the many laws the EEOC enforces, including the Americans with Disabilities Act (ADA).

In FY 2017, as in years past, disability (under the ADA) as a protected class generated the most lawsuits filed by the EEOC. Two such cases were filed in the final days of the EEOC’s FY 2017 and involved allegations that employers had violated the ADA’s rules regarding pre-offer medical inquiries of applicants.

The ADA restricts an employer’s ability to make disability-related inquiries or require medical examinations at three stages: pre-offer, post-offer, and during employment. The rules are different at each stage. In the EEOC’s own words:

  • At the first stage (prior to an offer of employment), an employer may not ask any disability-related questions or require any medical examinations, even if they are related to the job.
  • At the second stage (after an applicant is given a conditional job offer, but before he or she starts work), an employer may ask disability-related questions and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.
  • At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.

It was at the first stage (pre-offer) that the employers in the two lawsuits filed by the EEOC allegedly made unlawful medical inquires.

In the first of the two lawsuits, the employer’s application process allegedly required applicants to complete a medical questionnaire that asked about applicants’ use of medications, history of illnesses, and whether the applicant had any current or previous injuries to various parts of the body. EEOC v. All Star Priority Staffing, LLC (D. Ariz. 2017). The EEOC also alleged that the company asked medical questions during the interview process and then used the medical information it obtained as the basis for rejecting the applicants.

The EEOC made similar allegations in the second lawsuit, i.e., that the employer allegedly subjected applicants to medical examinations before making a job offer, and then rejected the applicants based on information gleaned from those examinations. EEOC v. Consolidated Edison Co of New York, Inc. (S.D.N.Y. 2017).

These lawsuits should remind employers of the very rigid and restrictive rules employers must follow when making pre-offer medical inquiries of applicants. And, even though these lawsuits involved pre-offer medical inquiries, employers should be just as vigilant when it comes to complying with the rules regarding medical inquiries at other stages of employment.